By Eric SchweibenzOn February 15, 2013, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21 (dated January 14, 2013) in Certain Digital Models, Digital Data, and Treatment Plans For Use In Making Incremental Dental Positioning Adjustment Appliances Made Therefrom, and Methods of Making the Same (Inv. No. 337-TA-833).
According to the Order, complainant Align Technology, Inc, respondents ClearCorrect Operating, LLC, ClearCorrect Pakistan (Private), Ltd., and the Commission Investigative Staff (collectively, the “Parties”) filed a joint request for receipt of evidence without a sponsoring witness. Specifically, the Parties sought to admit two categories of evidence without a sponsoring witness: 1) the asserted patents, the file histories of the asserted patents, the reexamination file histories of the asserted patents, and the provisional patent applications to which the asserted patents claim benefit, and 2) portions of the depositions of Mr. Kayani, Mr. Latif, and Dr. Waheed. As to the second category, the Parties generally asserted that the evidence presented in the depositions-at-issue was directly relevant to the allegations of infringement because the processes disclosed in the depositions are a part of the processes alleged to infringe the patents-in-suit.
ALJ Rogers began by stating the requirement that a party must establish that evidence is relevant, material, and reliable before evidence is admitted. As to the first category of evidence, ALJ Rogers held that the relevance and materiality of the evidence was clear. Regarding the second category of evidence, ALJ Rogers held that the Parties failed to establish that the evidence was relevant and material to the investigation. Specifically, ALJ Rogers stated that the evidence addresses issues relevant to a previous, related investigation, 337-TA-562, but not the current investigation. Accordingly, ALJ Rogers granted the Parties request with respect to the first category of evidence and denied the Parties request with respect the second category of evidence.